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Mediation & Arbitration Section Chair : HaroldOehler – OehlerMediation themessagefromtallahasseeisclear : mediationworks . litigationshouldbealastresort .
The 2021 Florida Legislature expanded the use of mediation as a tool to resolve lawsuits in a number of different statutes . In doing so , the Legislature specifically recognized the value offered by mediation in efficiently and inexpensively resolving claims involving condominiums , homeowner ’ s associations ( HOAs ) and other entities . While arbitration was the sole method for pre-suit dispute resolution previously required by Florida law , the Legislature expanded pre-suit alternative dispute resolution ( ADR ) to now require either mediation or arbitration . Both the revised condominium and HOA statutes now specifically state :
“ The Legislature finds that alternative dispute resolution has made progress in reducing court dockets and trials and in offering a more efficient , cost-effective option to litigation .” 1
The previous law required arbitration before it was possible to file suit in regard to many issues between owners and their associations . The 2021 legislative session made that requirement one of either mediation or arbitration . That change probably resulted from the fact that the arbitration often added at least another year to any resolution of the dispute , because it was non-binding and usually
required that a de novo lawsuit be filed . Mediation offers litigants a faster opportunity to reach resolution than litigation and provides parties to litigation the ability to exercise self-determination and choose their outcome themselves .
Each of the following Chapters of the Florida Statutes utilize ADR to resolve disputes : 718 Condominiums , 719 Cooperatives , 720 Homeowner ’ s Associations , and 723 Mobile Home Parks .
Section 718.112 contains various provisions which must appear in the by-laws adopted by a condominium association . If these required provisions are excluded in the by-laws , a court must interpret them as part of the by-laws in the event of litigation . When this statute required non-binding arbitration before any suit could be filed , courts either dismissed or held the suit in abeyance until completed . The new provisions require “ Alternative Dispute Resolution ( ADR )” instead of “ mandatory nonbinding arbitration .” 2
“ Dispute ” is defined to exclude claims involving : “ title ; any warranty ; the levy or collection of a fee or assessment ; removal of a tenant ; alleged violation of a fiduciary duty by a director ; or damage claims based on an association ’ s maintenance duties .” 3 Subsection ( 5 ) further excludes election and recall disputes . The Department of Business and Professional Regulation employs attorneys as arbitrators and maintains a list of private , certified mediators and arbitrators .
Changes in Sections 718.1255 ( 4 )( a ), ( 5 ) and ( 7 ), and 720.311 are the means through which mediation was inserted as another way to fulfill the ADR pre-suit requirement . A form for requesting mediation and another for agreeing to mediate are included in the statute , with a preface stating , “[ a ] n aggrieved party shall serve on the responding party a written demand to participate in presuit mediation …” 4 The other chapters dealing with Cooperatives and Mobile Homes utilize different ADR processes . Section 719.1255 incorporates the provisions dealing with Condomin - iums into the chapter on Cooper - atives . While section 723.038 states that parties to Mobile Home Park disputes may request mediation .
The message from the Florida Legislature is clear : Mediation works . Litigation should be a last resort . Such an approach is particularly important due to the historic backlog facing our courts . n
1
Fla . Stat . §§ 718.112 ( 3 )( b ), 720.311 ( 1 ).
2
See § 718.1255 .
3
Id .
4
Fla . Stat . § 720.311 ( 2 )( a ).
Author : Clark Jordan- Holmes – Mediationfor Florida . com
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